While on the one hand, the judgment holds valid Articles 16(4A) and 16(4B) that allow for reservations in promotions, on the other, it effectively neutralises this benefit by applying the creamy layer restriction. If the current creamy layer ceiling of Rs 8 lakh per annum were to be applied, even ‘Group D’ SC/ST employees will be barred from reservations. Like a deft magician, the court has performed a sleight of hand on reservation in promotions – now its there, now its not. Starting from the decision of Champakam Doriarajan in 1951, Nagaraj and Jarnail Singh have to be read as a part of a long history of courts taking a conservative view of the extent, scope and application of affirmative action.

Reservations in promotions: now its there

Reservation, particularly in promotions, has always been controversial. Article 16, which provides for “Equality of opportunity in matters of public employment” originally did not contain any explicit provision regarding promotion. However Indra Sawhney, which came in the wake of the Mandal Commission in 1992, held reservation in promotion as unconstitutional. To counter this judgment and others like Virpal Singh and Ajit Singh, parliament passed the 77th, 81st and 85th constitutional amendments in 1995, 2000 and 2001 respectively. These Amendments added the current Article 16(4A) and Article 16(4B) that explicitly allowed reservations in promotions for SCs and STs. The constitutional validity of these provisions was challenged in Nagaraj.

Delivered by a five-judge bench in 2006, the court upheld the constitutional amendments, but severely restricted the scope of the amended articles by subjecting it to the limitations of “the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency”. These restrictions developed in Indra Sawhney had hitherto applied only with respect to OBCs, and not to SC/STs.

In light of this, it was petitioned before the Supreme Court that the case be referred to a seven-judge bench to review Nagaraj. The court last week in its five-judge decision in Jarnail Singh rejected this plea. Instead, it considered two key aspects of Nagaraj – one, whether the need to collect quantifiable data showing backwardness would be contrary to Indra Sawhney and therefore unconstitutional and two, whether the court was right in applying the creamy layer concept to Scheduled Castes and the Scheduled Tribes. It held that while the requirement to collect quantifiable data showing backwardness for SC/ST in promotion is unconstitutional, the application of creamy layer is an important ingredient of equality and therefore valid.

The Supreme Court has performed a sleight of hand on reservation in promotions. Credit: Wikipedia

Applying creamy layer in promotions: now its not

The court in Jarnail Singh read the concept of creamy layer as part of the equality principle encapsulated in Article 14, 15 and 16. Borrowing from Indra Sawhney, a case that did not concern itself with SC/ST reservation, the court made the following broad observations. First, that for a class to be truly backward and for them to constitute a class, the ‘misfits’ among them i.e. the advanced individuals among them should be excluded. Second, excluding the creamy layer is necessary to make sure that the backward within the class have access to reservations and the better off within the group do not corner all the benefits of affirmative action. Third, not excluding the creamy layer violates the equality principle in as much as it amounts to treating equals i.e. forward castes and creamy layer of backward classes unequally, and unequals i.e. creamy layer of backward classes and the rest of the backward class as equals. It is worth noting that in applying this principle to SC/STs, neither Jarnail Singh nor Nagaraj engage in any discussion regarding the difference between OBCs and SC/STs or the appropriateness and risks of importing the concept and measurement of creamy layer to SC/STs. These are aspects that a constitutional court ought not to have ignored. The judgment consequently construes equality in ways that delivers inequitable results.

Creamy layer is an economic criterion. The assumption is that economic progress reflects social advancement and therefore, the person is liberated from his/her backwardness at attaining a certain economic standard i.e. when he/she becomes a part of the ‘creamy layer’. While the correctness of applying this standard even to OBCs may be debated, its application to SC/STs is fraught with grave risks.

The significant difference between OBCs ad SC/STs

For one, there is a significant difference between OBCs and SC/STs. In Karnataka, for instance, many powerful castes like Kurubas, Vokkaligas and Lingayats constitute OBCs. They are landowning, politically powerful and socially dominant castes. Their ‘backwardness’ is nowhere comparable to the social handicaps and exclusion that Scheduled Castes like Mala, Madigas and Holiyas face. The discrimination that SC/STs face is not because of their economic standing.

To put it somewhat simplistically, a Brahmin, Lingayat and Mala even if they are economic equals, will simply not be considered social equals. A Mala will face caste prejudice and discrimination that is likely unknown to his forward caste and OBC peers. The discrimination and prejudice that Dalits face is integral to their caste identity, or to borrow Rohith Vemula’s words – to the “fatal accident” of their birth.

While economic progress undoubtedly helps personal upliftment of individuals, it is not a proven antidote against prejudice and discrimination. Caste, like sex, colour, or race, is a marker of identity that decides every single aspect of life – from before birth to after death. It determines the political power, social standing and economic position of individuals and groups. Therefore, the reasoning of the court that application of creamy layer excludes only “those persons within that group or sub-group, who have come out of untouchability or backwardness by virtue of belonging to the creamy layer” shows a lack of understanding of the nature of caste discrimination.

To put it somewhat simplistically, a Brahmin, Lingayat and Mala even if they are economic equals, will simply not be considered social equals.

The judgment therefore hides both a class bias and a caste bias. First, it seems to presume that caste disabilities need correction only among the general populace i.e. ‘outside’ institutions or at the lower levels of employment and does not matter in upper classes. It harbours the common illusion that as one goes up the economic ladder, one inhabits a comparatively casteless space – that the elite do not discriminate and are not discriminated against. Second, at the economic benchmark that constitutes creamy layer, three distinct and varied groups i.e. forward classes, OBCs and Dalits can be conflated and treated alike, thereby holding a caste bias through caste blindness.

Viewed through the lens of (non) discrimination however, applying the concept of creamy layer, as it exists for OBCs today to SC/STs violates the principle of equality because it uses the one single metric to judge the backwardness and entitlement of a two different classes of persons who inhabit materially different social realities. By ignoring the specific disabilities of caste, it treats social equals i.e. economically advanced SC/STs and other SC/STs unequally, and unequals i.e. forward castes, economically advanced OBCs and SC/STs equally.

The argument that excluding creamy layers makes available the benefits of reservation to the ‘truly’ backward does not really apply in the case of promotions because at a certain level of employment, all SC/STs are likely to fall under the same economic bracket. This argument works only at the entry level where both richer and poorer SC/STs compete for the same positions.

Excluding the creamy layer from reservation benefits the non-SC/ST persons and not the weaker among the SC/STs. Herein lies another inconsistency – at entry levels, the court acknowledges that the disabilities of SC/STs are embedded in their group identity and not their personal wealth. That is why all such persons irrespective of economic measure are entitled to reservation. However, when it comes to promotions, it makes a leap of logic and asserts that this group identity is somehow shed through the accumulation of wealth. Equality dictates that two different standards cannot be arbitrarily applied to the same class of persons.

The rationale underlying this interpretation of the court is that reservations have to be construed conservatively and especially so in promotions because not only does it offend equality, it also compromises efficiency and merit in institutions.

The many myths of merit

Merit is not constructed or applied in a social vacuum. Quite to the contrary, every parameter constituting merit prioritises one normative standard or skill set over others. For instance, the choice of efficiency (which in itself is a vague criteria) over social equity is a normative choice. Or gauging merit through exams chooses to prioritise one set of skills and knowledge over others. And like all choices, these too are reflective of particular ideological leanings, social constructs and political values. In short, merit is subjective and far from being opposed to prejudice – be it caste, gender, race or language – is constitutive of it. And no institution, no matter how elite or exclusive, is immune from caste preference, prejudice, discrimination and exclusion.

Therefore, precisely because merit operates within social and institutional prejudices, there is every chance that prejudices can masquerade as merit. It is particularly relevant in promotions where senior officers, guided by their own social context, have to use discretion and interpret, judge and apply merit to the performance of their peers. This is especially true in case of SC/STs because the general presumption to begin with is that they are not as meritorious as their ‘general category’ colleagues by virtue of having ‘come in’ through reservations. Therefore, even on this seemingly objective and value neutral yardstick called ‘merit’ and ‘efficiency’, SC/STs do not enjoy a level playing field. Reservations in promotions for SC/ST can act as a check on this dubious working of merit. The importance of this has to be seen in the context that India does not even have a comprehensive anti-discrimination law and there are hardly any effective institutional mechanisms to check discrimination.

Affirmative action is not only about individual liberation and equality. It is also about redistributing power to the marginalised and discriminated groups. By applying the creamy layer to SC/STs, the court has effectively disallowed reservations in promotions. This is likely to create a glass ceiling for Scheduled Castes and Scheduled Tribes who will have to battle it much harder than their non-SC/ST peers to reach the top. This is what structural inequality looks like – where although some concessions might be grudgingly made to marginalised communities, the overall power structures are nonetheless held intact. SC/STs can have their shot at the lower rungs, but cannot stake a rightful claim on higher echelons of power.

Rashmi Venkatesan is an assistant professor at National Law School of India University.